24 N.H. 179 | Superior Court of New Hampshire | 1851
By the act of December 25th, 1844, the railroad commissioners, in conjunction with the road commissioners for the county where the lands taken for any railroad should lie, are required to assess the damages sustained by the owners of lands in the same way and manner as road commissioners in the several counties were by law required to do. Pamphlet Laws, chap. 128, § 5.
By the Revised Statutes, road commissioners are required to assess the damages sustained by owners of land, as selectmen are required to do. Rev. Stat., chap. 51, § 7. And by chap. 49, § 13, of the Revised Statutes, it is provided that “ selectmen shall assess the damages sustained by each owner of the land required for the highway.”
The act of June 23d, 1848, Pamphlet Laws, chap. 621, changes the law only so far as to provide that the railroad commissioners, in conjunction with the selectmen of the towns wherein the land lies, shall assess the damages instead of the county-commissioners.
The right of appeal and trial by jury, in cases of lands taken for railroad purposes, is given by the fifth section of the act of December, 1844, in the same manner as it is given in cases of lands taken for highways by the eighth section of chapter 51 of the Revised Statutes. After appeal, the jury are to assess the damages sustained by the land owner, instead of the road commissioners and the other officers in conjunction with them.
The damages, then, which are to be found by a jury on the trial of a case like the one before us, are to be the same which selectmen would assess in a case of taking land for a highway. "What such damages shall be, is not specifically pointed out, either by statute or by any reported case from our courts. Still they are believed to be generally pretty well understood through the community. As the lands are taken for the public use and convenience, individuals must be fully reimbursed, not only for the actual value of the land taken, but for all the “ damages sustained”
He whose land is taken for a railroad is to be equally protected. He is to receive all that equity and justice require, when the nature and extent of the property and rights to be affected, are considered. The corporation acquire the right to construct their road in any suitable and proper manner, for their own convenience and the public accommodation, and the right to vary and change that construction, within the established limits of the road, from time to time, forever, until the State resume the right and privilege of the corporation, or until the charter be altered, repealed or annulled. Accordingly, the commissioners or jury should take into consideration and appraise all damages, direct and consequential, present and prospective, certain and con
The damages awarded by the commissioners must be regarded as a full compensation for all the injury which the land owner may sustain, then or at any future time, from any cause which the commissioners were bound, or had a right to consider; so that it can never afterwards be made a question whether, in fact, the commissioners have or have not considered any particular cause of damage legitimate for their consideration. It must be taken that they have done their duty in considering all such causes, and that the party who has acquiesced in their decision, without appeal, is satisfied that they have done so. Or in case of a submission to a jury, it must be understood that they have been governed by the same principles.
But in granting the power to the railroad to take the land and make the road, no authority is given to make it in an unsuitable and improper manner; and hence the corporation must remain liable for all such damages as result from an improper and unsuitable construction. It will at times, perhaps, be a difficult matter to decide whether the road is built in a suitable manner
Ordinarily the damages are settled either by the commissioners or the jury before the road is built; and they are decided upon the assumption that the road will be made in a suitable and proper manner; but in this case, before the trial was had, the road was made and the jury had a view of the premises. And when a road has already been built, the jury must necessarily decide whether it has been done in a proper and suitable manner or not.
Upon the principles which we have endeavored to state as governing proceedings of this kind, we can discover no error in the instructions given to the jury. The corporation was liable for the damages sustained by reason of building the road in a suitable and proper manner, and instead of anticipating the manner in which it would be built, as is usually the case, the jury had the advantage of examining for themselves, and seeing the actual operation and effect it had upon the appellant’s property. And although the damages were to be assessed as of the day when the commissioners made their appraisal, yet the jury were the better enabled to do it by the light which they had, than they would have been before the road was made. In the one case they settle the matter from a supposed state of facts, and in the other from actual facts before them, of which they are the proper judges.
This question has heretofore been before this court, in Rockingham county, in the case of March v. The Portsmouth and Concord Rail Road, and it is understood that the instructions given to the jury in the present case were precisely the same as those given in that action, and which were held to be correct.
But there is still another question raised in this case, and that is, whether a stockholder of a railroad corporation which has adopted the act of December, 1844, rendering railroad corporations public in certain cases, is a competent witness for the corporation, independent of selling out his stock.
In order to constitute a stockholder a legal witness for the corporation, we must hold that a railroad is a public corporation within the meaning and intent of that section of the Revised Statutes which we have quoted.
At the time of the passage of the Revised Statutes, the general understanding of the meaning of a public corporation, as recognized by our reports, was one which was created for public purposes and for those only; and all of whose franchises were exercised for public purposes, and whose property belonged to the public; such as counties, towns, parishes, and school districts. Individuals had no private interest in them, such as could be released or conveyed to another. Private corporations were those which were created for the immediate benefit and advantage of individuals. Each stockholder in them had an interest that could be bought and sold, and which could be seized on execution. Canals, turnpike roads and bridges, banks and
Under these decisions, railroad corporations, at the time of the passage of the Revised Statutes, would no doubt have been held to be private corporations, and their stockholders incompetent witnesses for the corporations. But by the act of 1844, railroad, companies have, under certain circumstances, been declared to be public corporations. The chief design of that act, however, was not to take away the property of the individual stockholders and confer it upon the public, and make the road belong to the public, but to obviate the constitutional objection against taking private property for private purposes ; and it appears to us quite clear that the act cannot have the effect to make railroad companies public in their character to the' extent contemplated by the Revised Statutes, so as legitimately to fall within the meaning of public corporations, as there intended. Their property and franchises are capable of sale, and transfer, and attachment; and they are as much private corporations, so far as the interests of the stockholders are concerned, as turnpike roads. The act of 1844 gives a signification to the term “ public corporation,” which did not exist at the time of the passage of the Revised Statutes; aud we think the term as used in the Revised Statutes cannot be made to apply to railroad corporations. Stockholders, then, are not competent witnesses for the corporations.
In determining the question of the interest of a witness, the usual practieeris for the court to decide the matter before proceeding to the examination of the witness upon the merits. But the court have the power in their discretion, in a doubtful case, to submit the question of interest to the jury.
Judgment on the verdict.
Perley, J. having been of counsel, did not sit.